Roots, Rights and Respect: Human Rights and Human Wrongs

Human RIghts by Jose Diokno

HUMAN RIGHTS By Jose W. Diokno

In this article, the late human rights lawyer and statesman Jose W. Diokno (d. 1987) reduces the question of human rights to its very basic elements, and provides a simple view remarkable for its clarity. It remains a classic Filipino document on human rights.
Each of the great documents on human rights enumerates more than 20 human rights. Because so many are listed, many of us find it hard to grasp their scope. So let us start with the basics.
First. None of us asked to be born. And regardless of who our parents are and what they own, all of us are born equally naked and helpless, yet with his/her own mind, his/her own will and talents. Because of these facts, all of us have equal right to life and share the same inherent human dignity. The right to life is more than the right to live: it is the right to live in the manner that befits our common human dignity and enables us to bring our particular talents to full flower. So each of us individually has three basic rights: the right to life, the right to dignity and the right to develop ourselves. These are traditionally known as the right of man.
Second. Even if we may not know who our parents are, we are never born without parent, and never live outside society, a society with its own peculiar culture, history, and resources. So besides our rights as person, we have the right as a society, rights which belong to each of us individually but which we can exercise collectively as a people. These rights are known as the rights of the people. They are analogous to the rights of man, and like the latter comprise three basic rights: to survive, to self-determination, and to develop as a people.
Third. Once a society reaches a certain degree of complexity, as almost all societies have, society can act only through government. Bur government always remains only an agent of society; it never becomes a society itself; it never becomes the people themselves. It is always and only an instrument of the people. Moreover, since the government is composed of men/women, each with his/her own interests and his/her own frailties, it usually happens—in fact it happens too often – that government does not seek the people’s welfare; on the contrary it oppresses the people.
These facts lead to two conclusions.
One is that, when we speak of national security, what we refer or should refer to is the security of the people, not of the governors; and when we speak of economic development, what we are talking about or should be talking about is the improvement of the standard of living of the people, not the enrichment of the governors.
The other conclusion is that since the government is merely an agent of the people, people have the system of government itself; and when the people cannot do so peacefully, they have the right, in the language of the preamble of the Universal Declaration of Human Rights, "to have recourse, as a last resort, to rebellion against tyranny and oppression".
All the rights of men/women and all the rights of the people stem from those three basic principles.
From man’s/women’s first basic rights—his/her right to life—spring our rights to: health, own property, work, form trade unions, strike, social security, rest and leisure, move about freely within our country and freely to leave and return to it, marry, establish a family and exercise the rights of parents.
Analogously, the right of the people as a people to survive is the source of our people’s rights to: peace, non-aggression and share in international trade, receiving a just price for our products and paying no more that is fair for the products of other countries.
Man’s/woman’s second basic rights – his right to human dignity – is the source of our rights to recognition everywhere as a person, to honor and reputation, to freedom of thought, of conscience, of religion, of opinion and expression, and to seek, receive and impart information, to peaceful assembly with our fellows, to equal treatment before the law, to privacy in our family, our home and our community, as well as from arbitrary arrest, detention or exile, to be presumed innocent of crime or wrong, to fair trial, and so forth.
The analogous rights of the people to self determination is the root of our people’s rights to sovereign equality in international affairs and international organizations, to freedom from all forms of racial discrimination, to political independence and freedom from colonialism, neo-colonialism, alien domination and intervention in our national affairs, to sovereignty over our natural resources and over all economic activities, to control the activities of foreign investors and transnational corporations, and to nationalized and expropriate their assets, and freely to choose and change our political, social, cultural and economic system.
Man’s/woman’s third right – his/her right to develop – is the source of our rights to an education, to share in the cultural life of our community, to form associations with our fellows, and to live in a national and international order that allows all our rights to flower and be respected.
Similarly, the people’s right to develop as a people implies the rights to freely choose the goals and means of development to industrialize the economy, to implement social and economic reforms that ensure the participation of all the people in the process and benefits of development, to share in scientific and technological advances of the world, and as a former colony, to reparation and retribution for the exploitation to which we have been subjected.
No one has ever doubted that the rights of the people are all of peace. Equally so are the rights of man/woman. But for convenience, the rights of man/woman have been divided into two broad kinds: economic, social, and cultural rights on the one hand, and civil and political rights on the other. This distinction has led so much argument about which kind should be given priority and whether one kind can be sacrificed for the other.
My experience has convinced me that these arguments are silly. As lawyer of small farmers, fisherfolk, workers, students and urban poor, many of whom have been detained, most of whom have been threatened with detention—a few of whom have been shot and wounded when they were peacefully exercising their rights of assembly—I have learned the painful lesson that we cannot enjoy civil and political rights unless we enjoy economic, social and cultural rights, anymore that we can ensure our economic, social and cultural rights unless we can exercise our civil and political rights. True, a hungry man/woman does not have much freedom of choice. But equally true, when the well-fed man/woman does not have freedom of choice, he/she cannot protect himself against going hungry.
A more useful distinction than between economic and political rights is this: that some of man’s/woman’s individual rights are absolute, others are not. Rights which are absolute cannot be limited in any under any circumstances, not even under the gravest of emergencies. Such are for example, the right to freedom of thought, of conscience, of religion, to be everywhere recognized as person, to be free from torture and from cruel, degrading and inhuman treatment; and of course, the right not to be deprived of life arbitrarily. Not only may these rights never be denied, but nothing justifies imposing any limitation on them.
On the other hand, the rights may be and in fact must be limited to preserve social life. Such are for example, the right to freedom of expression, freedom of assembly, and freedom of association. To be valid however, limitations placed on these rights must meet three conditions: first, they must be provided by law, not by executive whim; second, they must be necessary to preserve society, or protect public health, public morals, or similar rights of others; and third, they must not exceed what is strictly necessary to achieve their purpose.
These rights and some others—such as, for instance, the right to be free from arbitrary detention and arrest and the right to a remedy for every violation of fundamental rights—may even be denied in times of grave emergency. But to justify such a denial, the emergency must be so grave that it truly threatens the life of the nation; the existence of the emergency must be publicly proclaimed; and the denial may go no further than is strictly required by the exigencies of the situation.

posted by jef_eleven @ 10:40 AM